International Art Litigation – An Interview with Lawrence Kaye

Lawrence M. Kaye, a member of the law firm of Herrick, Feinstein, LLP, and Co-Chair of the Firm’s Art Law Group, is engaged in the practice of all facets of art law and represents a wide range of domestic and international clients. He is noted, in particular, for his representation of foreign governments, victims of the Holocaust, families of renowned artists and other claimants in connection with the recovery of stolen art and antiquities. He was a lead attorney in the landmark case of Federal Republic of Germany v. Elicofon, in which two masterpieces by Dürer, stolen at the end of the Second World War, were recovered and returned to the Weimar Art Museum. Among other notable matters, Larry and his colleagues have successfully represented the heir of the noted pre-war Dutch dealer, Jacques Goudstikker, whose large collection of Old masters was looted by the Nazis under Reichsmarshall Herman Goring, in recovering 200 Nazi looted works in the custody of the Dutch Government and more than 70 other works held by collectors and institutions around the world; the heirs of the famed Russian artist, Kazimir Malevich, in connection with their successful claims to recover Malevich works from the Museum of Modern Art, Harvard University’s Busch-Reisinger Museum, the City of Amsterdam’s Stedelijk Museum and the Guggenheim Museum, and the heirs of Lea Bondi Jaray in their continuing efforts to recover Egon Schiele’s Portrait of Wally from Vienna’s Leopold Museum. Mr. Kaye writes and lectures extensively on the repatriation of cultural property, international art litigation and complex art transactions.

Q: You were a front-runner in developing the field of art litigation. Can you tell us about your practice?

Our practice started out as a litigation practice involving the recovery of art and cultural treasures that were stolen from sovereign nations. Today it is a full-fledged art and cultural property practice. We still do recovery litigation and lots of it. We also do all kinds of international and domestic art litigation, from contractual disputes to representing sovereigns. We have a transactional practice, in which we help collectors, museums and auction houses buy and sell art. We work on consignment agreements, loan agreements, exhibition agreements, and option agreements, among other things. We also have an active art lending practice where we represent both banks and borrowers. So it has become a very full practice.

We have two full time partners who are the co-chairs of the group, four full-time associates, and a full-time paralegal. We also partner with many other lawyers in the firm in litigation, corporate, taxation, intellectual property and other disciplines, so we probably have the largest art group in the world.

Q: How did you become involved in this niche practice area?

I was involved initially in a landmark case that dealt with the very famous theft of two portraits by Albrecht Dürer from the Weimar Art Museum at the end of World War II. We represented the museum which was attempting to recover the paintings from a young lawyer in Brooklyn.

After depositions were taken in Europe, the Court ruled that the Weimar Art Museum was an arm or instrumentality of the German Democratic Republic (GDR). And because the United States did not recognize the GDR as a de juregovernment, the Court ruled that, under the non-recognition doctrine, our courts could not entertain a lawsuit by the Republic. We fought the decision for more than ten years, from the District Court up to the Second Circuit Court of Appeals, and then had our petitions for certiorari and rehearing denied by the United States Supreme Court. However, during that long period of time, the United States finally recognized the GDR in 2005. That concept is retroactive, and because the case was still alive, we were able to apply for reconsideration in the District Court under Rule 60 (b)(6). We got back into the case and moved for summary judgment against the GDR and the Grand Duchess of Saxe-Weimar-Eisenach, who claimed the paintings belonged to the private collection of the hereditary Grand Duke. We ultimately won on summary judgment, and the paintings were returned to the GDR. They hang to this day in the Weimar Art Museum.

My personal involvement with that case and in the field of international art litigation began when I was still a student at St. John’s Law School. As a summer associate following my second year, I was asked the question, with respect to the Dürer paintings case, whether a suggestion of interest by the United States government was binding on the court. The government stated that it did not want the court to recognize our suit because of the non-recognition doctrine. It turns out that it was not binding, but it was persuasive, and the courts will usually follow what the U.S. government says, and they did in that case. It was interesting that the Assistant U.S. Attorney on the case at that time was Ray Dearie, now Judge Dearie, the Editor-in-Chief of the St. John’s Law Review the year before me. So they asked me that question in the summer of 1969; the case went on until 1983, and in the process I became an international art lawyer.